The proposed review of the Matrimonial Causes Act (MCA) 1973 will be widely welcomed. The legislation, which is now 50 years old, came into force at a time when society was very different.
Divorce legislation has been recently reviewed and revised, to reflect the desire by a great many separating couples to part in a constructive and straightforward way. The Divorce, Dissolution and Separation Act 2020, which came into force on 6 April 2022 after years of campaigning by Resolution, saw an end to fault-based divorce. The act enables parties, for the first time, to apply to divorce jointly should they choose to do so. This change to legislation has arguably been the biggest reform of divorce law for over 50 years. It recognises that couples are often keen, upon separation, to part without blame and animosity. This ethos was largely inconsistent with the former legislation.
In the same vein, a reassessment of the legislation, with a view to providing enhanced consistency in decisions and strengthened guidance suitable for the modern age, can only be helpful. This concerns advising clients on financial matters associated with divorce, and which courts have regard to when deciding on how a ‘matrimonial pot’ should be divided.
The MCA was born at a time when there were no same-sex marriages or civil partnerships. It was common for husbands to be ‘breadwinners’ and for wives to be ‘housewives’. Today, it is much more likely that both parties within a relationship work and care for any child or children of the family. It is also possible for same-sex couples to marry and for both same-sex and opposite-sex couples to enter into civil partnerships, should they not wish to take marriage vows. There are a great many more blended families, and parties divorcing and remarrying later in life. While every case is different, the interpretation and discretion afforded by the MCA can lead to diverse outcomes, often in different geographical areas, in cases with similar factual circumstances. I do not believe that a court’s discretion should be removed, but it would certainly be advantageous to be able to provide greater certainty than is presently possible when contemplating the potential outcome of any case.
As it stands, if parties seek to provide as much certainty as possible in the event of a potential future separation and divorce, it is open to them to enter into a prenuptial agreement ahead of any intended marriage or a postnuptial agreement following a marriage. Subject to certain steps being taken by the parties, the court is likely to uphold such an agreement at the time of any divorce. These steps include sharing financial information, obtaining independent legal advice and ensuring as far as possible that the terms of the agreement are ‘fair’ in the circumstances of the case, in the absence of any duress or pressure to execute the agreement. This has been the position since the Supreme Court decision in the landmark case of Radmacher v Granatino in 2010.
However, the above agreements cannot presently be said to be binding in this jurisdiction, and as such it is open to the court to depart from them, should any of the key steps not have been met. The Law Commission published a report in 2014 recommending that Qualifying Nuptial Agreements should be introduced and even provided a draft Nuptial Agreements Bill. I believe that acceptance of such agreements, as proposed, would provide couples with enhanced peace of mind.
Coercive control is not an uncommon feature of a number of relationships. Recognition of the impact of this behaviour in matrimonial finance cases is important. That is true when contemplating the validity of a prenuptial agreement or a party’s ability to rebuild their life upon separation. There is a link between this behaviour and a party’s future earning capacity and potential need for spousal maintenance. I recognise that there needs to be a balance between opening the floodgates and ensuring that the overriding principle of fairness is met. Further guidance is welcomed.
‘Needs’ and ‘sharing’ are arguably the most common concepts considered by family lawyers when contemplating advice in matrimonial finance cases. ‘Compensation’ is not so often raised. However, in some cases it is appropriate to have regard to the significant economic disparity between the parties, as a result of decisions made in the course of the relationship, and which have caused a stark financial disadvantage to one of them. That is, where one party has put their career on hold while the other party’s career has progressed and flourished with their support (as in the recent case of TM v KM [2022], where a ‘discrete compensation award’ was deemed to be appropriate by the court). While I accept that care needs to be taken to opening up claims, and to not double account in any way when having regard to the value of earning capacity for sharing purposes, it remains possible for compensation awards to be made. Further clarity in this regard would not go amiss.
Eve Geere is a family law specialist at Parfitt Cresswell, Uckfield
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